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Nov 6 |
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Vol 1 |
 Peggy Cole
Executive Director |
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In this issue!
"Catching Raindrops" Water still tops the subject matter that came into the HRM office the past few weeks. People worrying, people offering solutions, people having to drill new wells. We think we'll have a better time if we turn our eyes toward a vision (a future landscape description) of abundant water for all through better soil surface management. And speaking of water, how about getting involved in helping with our HRM Annual Meeting, Catching Raindrops? The event takes place in Kerrville February 9 & 10, 2007. We need: • someone to be in charge of the trade show, and anyone who wants to just help out in general is welcome to send us an e-mail and we'll see how you might want to help. Of course, we need people to donate items for the Silent Auction (lots of publicity potential here ) and 9 businesses to be in the Trade Show (publicity here, too.) Get involved! It's FUN! And the program promises to be great. Did you ever wonder how Holistic Management Practitioners plan an educational event like this? Well, the Annual Meeting Committee first came up with a holistic goal and selected our event components to take us toward that goal. Here is what we are aiming for: Catching Raindrops Mission Transforming people's relationship with the land and the importance of its impact to every aspect of life through the power of Holistic Management. Holistic Goal for HRM of TX Annual Meeting Quality of Life Attendees are excited, having aha moments and see connection of management of soil surface to abundant water for Texas and seeing the connection between their actions and abundant water for Texas, having fun, motivated to action Forms of Production We must produce a meeting with speakers who are motivational and can help transform attendees' perception of their relationship to land and abundant water for Texas We must produce a meeting that provides information about healthy water cycles and healthy water catchments. We must produce a meeting that provides for interaction, time for discussion integrated with fun activities. We must produce a meeting that has attendees leaving with the information they need in order to take action on water issues in their community as well as water policy for state of Texas We must produce strategies to get our membership to the meeting Future Resource Base People – We must be seen as a strong organization, knowledgeable about connections between good land stewardship and abundant water Land – High biodiversity, healthy ecosystems and abundant water because of knowledge of holistic management and the use of good soil surface management practices Community – Networking of urban people and land managers to provide abundant water for Texas Here are the components (fees are approximate as non-members pay a little more and we give a break for couples and for those signing up for the whole event –we will have the whole price schedule next issue). All parts of the whole take place at Holiday Inn Express in Kerrville Planned Grazing Workshop, 8am to 3pm February 9, 2007 – fee $80
Terry Gompert is here all the way from Nebraska with a 6-hour workshop on planned grazing. You will learn all about planning for best use of your land, how to estimate the rotation schedule, how to really tell when to move ‘em, what kind of forages are best for grass-fed and a whole lot more. Terry Gompert is a Holistic Management Certified Educator from Knox County, Nebraska where he teaches with the Extension service.
The Friday Night Social 6 to 9 pm Friday, Feb. 9 Free for members and non-members who attend any other part! This is the time we get together as old and new friends to touch base and find out what has been going on. We will have snacks and drinks, time to visit and time to conduct our annual business meeting where you will find out what has been happening, what is planned and how you can find a place to participate. Catching Raindrops- The Conference – 8am to 6pm Saturday, Feb. 10, 2007 fee $70 We don't want to give away any surprises, but we have some fun in store for you. Steve Nelle takes us on a wonderful Virtual Watershed Walk where we learn to spot the signs of a healthy, functional watershed.
Texas Groundwater Law Changes Have Come At Landowner Expense! Livestock Weekly In SB 2, legislators rewrote Chapter 36 of the Texas Water Code, and this law, along with HB 1763, essentially gave groundwater districts substantially more power to regulate groundwater. One Austin-based water attorney, however, says this increased empowerment has limited and in some cases jeopardized private property rights of landowners. Johnson has been an advocate of the landowner when it comes to groundwater, as he views the landowner's right to groundwater to be a vested private property right. In his presentation, Johnson addressed the history of the rule of capture in the courts and identified the issues that have not been addressed by the courts with regard to that law. He then contrasted that with what the legislature has done in empowering ground water districts. His comments focused primarily on how these laws specifically impact landowners and their private property rights. Johnson reminded listeners that prior to 1904 there was no statute on the books that addressed ownership rights of landowners with regard to groundwater. In 1904 the Texas Supreme Court, in Houston and T.C. Ry. Co. v. East , unequivocally adopted the English common or the "absolute ownership" law, better known today simply as the rule of capture. "It's helpful to look at the facts of the East case," Johnson told listeners. "What you had was a historic farmer, an irrigator using groundwater, who had his water supply interrupted by a railroad company. The railroad company needed water to cool their steam locomotives that were crisscrossing the United States. The State of Texas desperately wanted those railroads to make their way through to the state of Texas. "If the Supreme Court had imposed a 'reasonable use' rule which limits the use of the water to the reasonable amount for the land from which it is produced, it would have seriously constrained the railroad's access to groundwater, and they didn't want to do that. So the Supreme Court rejected the lower court ruling in favor of what is now known mostly as the rule of capture law."The other argument made by the Supreme Court was that groundwater was "mysterious and occult," and that they couldn't begin to address who owned what under the ground because the science wasn't available to make those kinds of determinations. The decision in the East case, Johnson noted, was reaffirmed by the Texas Supreme Court in Texas Co. v. Burkett , but the court also took it one step further. "The court basically said that the right to use groundwater by the landowner is not limited to, in any shape or form, the actual property that the landowner owned, or put another way, the landowner could use that water anywhere he chose to use it and not just on the property that he owned, in essence making it a freely transferable property right." Both of these cases, Johnson pointed out, did nothing to limit the landowner's right to sell or transfer water captured so long as the water was beneficially used without waste. The waste issue specifically was ultimately addressed in City of Corpus Christi v. City of Pleasanton , in what Johnson described as the "ultimate transfer case." Prior to the 1950s the city of Corpus Christi relied strictly on surface water. When that water supply was severely threatened due to extended drouth, they contracted with the Lower Nueces River Supply District for a supply of groundwater from four large water wells located on land which the supply district owned. "In the process, the wells that they had contracted to produce water from dried up the city of Pleasanton's municipal water supply," Johnson explained. "The City of Pleasanton realized that the City of Corpus Christi, under the rule of capture, had the right to do what it was doing, so they chose to address their claim under the exception to the rule of capture which was, you couldn't waste groundwater." The City of Pleasanton argued that the way Corpus Christi chose to have the water delivered, via an 80-mile river channel, allowed the majority of the water to escape. In fact, they proved that up to 70 percent of the water produced from those wells did not make its way to Lake Corpus Christi and that, they argued, constituted waste. "The Supreme Court essentially said that while this is a terrible situation, it's not our job to regulate or decide what constitutes waste; that is the legislature's job," Johnson said. Some 40-plus years later, in 1999, the Texas Supreme Court reaffirmed again the rule of capture law in Sipriano, ET AL, vs. Great Springs of America, ET AL . In the Sipriano case, Sipriano, a historical user of groundwater, claimed that the bottled water company, which moved in next door, dried up his water supply. "The landowner chose to cast it as a malicious use of water by the bottled water company," Johnson commented. "To everyone's surprise, the Supreme Court decided to review whether or not the rule of capture should continue to be the law of the State of Texas. "In the end they agreed that the rule of capture is an archaic law, and probably not good policy. They said there are probably any number of good reasons to change the rule of capture, but we're not going to, at least not for now." The court, he noted, pointed once again to the Texas legislature, saying that it was their job and reminding them again that Article 16, Section 59 of the Constitution enjoins them to do that. The other reason the court gave for not doing anything again about the rule of capture, Johnson told listeners, is that they noted that the legislature had just passed SB 1 and was actually attempting to do something about groundwater management and regulation through the creation of groundwater conservation districts. "So I ask, what advice do you give landowners who come into your office and ask how they are to protect their groundwater, who want to know if the rule of capture applies and who want to know if they will have that right in the future? "My response is, 'Well, right now you do, sort of, unless you're in a groundwater district, maybe, and oh by the way, the Supreme Court might do away with that rule of capture right in the future.'" The Court, Johnson reminded, has never clearly defined the precise nature and extent of the real property right landowners possess through the absolute ownership rule. "Despite arguments to the contrary, ownership of groundwater rights is and has been consistently recognized by the court as a real property right, subject to legislative regulation. However, the courts have not addressed the thorny question of if, when, and to what extent the groundwater rights of a landowner are vested and to what extent the Constitution limits what the legislature can empower groundwater conservation districts to do." Johnson reminded listeners that most of the early groundwater districts were created in the Panhandle, largely because of the drouth of the 1950s. That all began to change with the creation of the Harris Galveston Subsidence District in the Houston area, which Johnson said was created solely for the purpose of keeping Houston from sinking. "In essence, the creation of that district was a mandate to transition of use from groundwater supplies to surface water supplies in order to stop subsidence. The district was also given the power to charge a user fee for the use of this groundwater resource that had been otherwise free." Predictably, some landowners in the Harris Galveston area felt that was an infringement of their property rights because landowners outside the district were not treated the same. Some of them sued. The court of appeals, he noted, swept the landowners' arguments aside, rejecting the facial challenge to the legislation creating the subsidence district, and pointed yet again to the legislature's responsibility to manage and protect the state's natural resources. The next big development in groundwater districts came with the conflict over the Edwards Aquifer in San Antonio, a conflict which Johnson said, "reached epoch proportions. "It wasn't just a groundwater dispute," he noted, "it was really a dispute between three huge segments of the state's economy - the agriculture community to the west of San Antonio, the municipal industrial complex that is in the city of San Antonio, and the spring-dependent economies in New Braunfels and San Marcos and the Guadalupe River System, which sent water all the way down to the coast to a variety of businesses and cities." The region couldn't agree on legislation that would empower the existing Edwards Underground Water Conservation District to implement a drouth management plan, and when the district was unable to impose limits on groundwater usage from the Edwards, a round of litigation in both state and federal court began. "Under the Comanche Springs case, because of the rule of capture, the City of San Antonio and the farmers felt they didn't have to worry about drying up Comal and San Marcos springs because they exercised their rule of capture rights. It didn't matter if the springs ceased flowing, because the groundwater right, under the Comanche Springs case, was predominant," Johnson explained. "That led to the City of San Antonio running headlong into conflict with the Endangered Species Act. "There was a brief interlude where the state tried to intervene by declaring the Edwards to be an underground river, which would then mean it was surface water and therefore subject to state regulation, but that was ill-fated." The Sierra Club and the Guadalupe River Authority's suit over endangered species went forward. "They went running to the only federal court that had never met a state problem that the federal court couldn't solve. Judge Lucius Bunton ruled instantly in favor of the Sierra Club. He basically said to City of San Antonio, 'You can't rely on the law. There's this other law out there called Though Shalt Not Kill Endangered Species. It's the 11th Commandment.'" The ultimate outcome of the madness was the creation of the Edwards Aquifer Authority. Johnson noted that in creating the Authority, the legislature gave the EAA specific powers to manage groundwater use in the Edwards Aquifer region. The EAA was granted the authority to set a cap on total production from the Edwards and then it established a process by which landowners who had relied upon that right could obtain a permit. That empowerment angered many landowners who, along with the Medina County Underground Water Conservation District, filed suit declaring the legislation unconstitutional. They claimed that provisions of the Act limiting groundwater withdrawal violated the Texas Constitution and were in fact a "taking" of the landowners' property rights without compensation. However, the Supreme Court of Texas, in Barshop vs. Medina County Underground Water Conservation District , reversed a trial court judgment which had declared the Act unconstitutional and dissolved the trial court's injunction preventing the Act's implementation. "In the Barshop case, which was a direct appeal from a district court decision, the district court found the law unconstitutional for every reason alleged by the landowners," Johnson noted. "There were some 140 reasons stated by landowners why the law was unconstitutional, but once again the Supreme Court chose to avoid the question." The court wrote: "While our prior decisions recognize both the property ownership rights of landowners in underground water and the need for legislative regulation of water, we have not previously considered the point at which water regulation unconstitutionally invades the property rights of landowners. The issue of when a particular regulation becomes an invasion of property rights in underground water is complex and multi-faceted. The problem is further complicated in this case because Plaintiffs have brought this challenge to the Act before the Authority has even had an opportunity to begin regulating the aquifer. "Despite these problems and competing interests, this case involves only a facial challenge to the Act. Because plaintiffs have not established that the Act is unconstitutional on its face, it is not necessary to the disposition of this case to definitely resolve the clash between property rights in water and regulation of water." "Because the court never really addressed what the nature of the groundwater right is, we get into this troublesome area with groundwater districts," Johnson told listeners. "If landowners have a vested right in their groundwater, then much of what groundwater districts have been empowered to do could result in an unconstitutional taking of those landowners' real property rights. It's just inevitable," he insisted. Since that time, tremendous changes have occurred in Texas groundwater law. With the passage of SB 1 the legislature deemed local control in the form of groundwater conservation districts to be the preferred method for managing groundwater. Four years later, with the passage of SB 2, legislators essentially rewrote Chapter 36 of the Texas Water Code and in so doing dramatically increased the powers of groundwater districts. "In the early days, groundwater districts mainly educated, informed and to some extent regulated production by spacing and property line regulations. They didn't exercise any direct control over the amount of water produced. No permits had a limit," he commented. "That has all changed by virtue of legislative authorization in Chapter 36 which does give groundwater districts the express power to regulate production by setting production limits or using spacing, etc., or using allocation per acre." While SB 2 dramatically increased the powers of groundwater districts, there were still many questions that were left unanswered, and in the most recent legislative session lawmakers attempted to address those questions with the passage of HB 1763. "There are some who give the impression that HB 1763 was a good bill for landowners. "That's just not so," Johnson opined. In a nutshell, Johnson told listeners, the bill increases the Texas Water Development Board's supervisory role over groundwater districts. It requires coordination among groundwater districts managing the same aquifer and introduces a number of new terms and requirements for district management plans. One of the new terms, "total aquifer storage," is defined to mean the total calculated volume of groundwater that an aquifer is capable of producing. "Managed available groundwater" means the amount of water that may be permitted by a district for beneficial use in accordance with the desired future condition of the aquifer as determined through the "joint planning in management area" provisions of Chapter 36. "If you ask a local what they would like the future condition to be, most will say, 'Just the way it is right now. Don't change anything.'" "So these GMAs (groundwater management areas) come up with their defined future condition and they give those to the Texas Water Development Board, who in turn comes up with a quantitative figure that will allow the district to achieve these future conditions," Johnson explains. "Magically, that number is the amount of water that is currently being used. What a concept. "So now we know scientifically how much managed available groundwater there is in this district. Now these districts have the power to say no once total issued permits reach that amount of 'managed available groundwater.' "How do you think that's going to affect landowners throughout the state? I suggest that it will be a good time for litigation over this question of the nature of the groundwater right." HB 1763 also clearly gives districts the ability to determine the relevant time period for determining historic use. Johnson insisted that the concept of "managed available groundwater" based on "desired future conditions" creates what he termed "inherent ambiguity." Unlike surface water, he pointed out, groundwater resources vary widely in terms of replenishment through recharge or flow from other geologic formations. "Managing groundwater resources with the primary focus of protecting existing and historic use artificially limits access by landowners who have historically conserved the groundwater by not making use of it," Johnson noted. "It seems this legislation gives preference to historic use while depriving all other landowners of the same access to groundwater. "Moreover, this is bad policy because landowners are now being encouraged and compelled to make immediate use of their groundwater or risk losing the right forever in the future," he concluded. Quivira Coalition Soliciting Nominations for its annual Burch Award! Please read the attached announcement and mail them your best bet! Send to:
Texas Water Development Board's Rainwater Harvesting Evaluation!
Thank you for your interest. Hari J. Krishna, Ph.D., P.E. One answer is abundant water for all, then there is no need to fight Holistic Resource Management of Texas feels the best way to ensure abundant water for Texas is to manage the soil surface so that water is absorbed by the soil and stays there long enough to make it into the aquifers, pure and clean. Come to our Catching Raindrops meeting February 10 (see lead story) Others With An Eye on Water!
Check out these folks at Environment Texas. They have a page for several environmental issues. Here is a link to the one on water: https://www.environmenttexas.org/clean-water Follow your fascination on this interesting site with reports from many sources. The Davis Mountains' rugged terrain has helped protect it from human meddling. Sky Island! A most amazing phenomenon has occurred in the West Texas highlands surrounding Davis Mountains State Park. Aside from the addition of a few more fences, a cell tower, a scattering of new homes and businesses, and some black-top paving, time in this part of the state appears to have stopped. In fact, this cool, clear mountain country seems to have remained basically the same for the last 125 years. A testament to this paradox can be found in a passage from the journal of geologist Burr Duval, a member of an 1879 mineral expedition who described the region during his travels across the state.
Duval's description may sound idealized and old-fashioned, but the fact is that this Davis Mountains observation could have been written yesterday. Remarkably, visitors to Davis Mountains State Park can still embrace Duval's morning mountain beauty with their own eyes. More profoundly, Texans can hike across the park on one of its several well-groomed trails and experience what Duval considered the heartfelt consequence of traveling through Texas' high-elevation countryside. “We are among the Sierras now,” Burr exclaimed, “not the ‘Mesas' any longer, and indeed are touching the backbone of the continent. Read the rest of this article at… http://www.tpwmagazine.com/archive/2006/oct/ed_1/ And keep an eye on the TPWD website as the November issue of Texas Parks and Wildlife. has " Mexico 's el Carmen.......Room to Roam.
Here is a note we got from Vivianne J. Holmes, Ph.D.- of the Women's Agricultural Network:
Please help me get out the word about Women's Agricultural Network's: Women Connecting 2006 : Field, Forest , and Self December 8, 9 and 10, 2006 There is a fabulous program planned and it is open to everyone from everywhere. We are having a number of focuses and they cut-across many educational interests: ? Women and the Woods – Forest Management Please share this information with your client groups. Thank you, Vivianne Holmes http://www.umaine.edu/umext/wagn/anniversaryconf.htmGrazing Texas Grass – Dec. 8, 2006 in Austin Here is an opportunity to learn about why Whole Foods is going grass-fed and how you can join in. Start by learning about forages from Dalton Mertz.
And a reminder to attend the Land Stewardship conference in Uvalde, November 14.
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Catching Raindrops!: 2007 HRM of Texas Annual Meeting!
Jim and Judy Reed are next up, along with Certified Educator Peggy Maddox on ”Money Matters,” Holistic Management Financial Planning - some say this is the most valuable part of Holistic Management - it really works to increase profits and help make a career in agriculture really pay off.
Gardening Guru and Student of Nature, Malcolm Beck talks about his latest discoveries about the relationship of soil and water. Dr. Pat Richardson delights us with tiny soil critters in their natural environment, captured on video with the magic of microscopy. Terry Gompert offers the HRM solutions to the water shortage and David Langford clues us in on how the Texas Legislature is making water decisions. Playing the Watershed Game we learn even more about these important catchments. Exploring our values as different types of landowners, facilitated by Jenny Sanders , we then divide into regional groups to decide what we can do to help the whole… individually, regionally, state-wide and globally.
AUSTIN - Over the last 10 years groundwater law in Texas has changed tremendously. Some of the biggest changes came with the passage of Senate Bill 2 in 2001 and most recently with the passage of House Bill 1763 in 2005.
The Quivira Coalition is soliciting nominations for its annual Burch Award. This $15,000 award will be presented at the Banquet event at our Annual Conference in January. 
The DRAFT report of the Texas Rainwater Harvesting Evaluation Committee is now posted on the TWDB website and is available for your review at the following link: 
“Certainly, under the light of a morning sun,” Duval observed, “this country is exceedingly lovely to look at — On my right some four or five miles are rough and rugged iron-colored mountains, on my left are hills of nearly equal height, smoothly sloping and gently rounded, covered to their very summits with the most magnificent grasses, which even now look cured and not dead — Before me lies a gently undulating valley miles in extent … Not a living thing is in sight except a herd of antelope in the West — perhaps a mile away.”
"The El Carmen Initiative preserves a one-of-a-kind ecosystem in Mexico and enhances wildlife corridors on both sides of the border (into Big Bend). Black bear from Mexico already have moved back into BBNP and up into the Davis Mountains! Read this interesting article about a region in Mexico that is being protected from development - so crucial to Texas. One of the most biodiverse ecosystems in the Chihuahuan Desert - true "Sky Islands" with the highest peak rising more than 9,600 ft. High mountain meadows, towering peaks, fir forests, humid canyons, park-like oak woodlands, sotol-yucca grasslands and desert lowlands...... Already over 79 mammals, 80 reptiles/amphibs, 400+ species of plants and over 250 species of birds have been ID'ed. Many rare and endemic species. 693,000 acres in Chihuahua and 514,000 acres in Coahuila compliment the protected acres across the Rio Grande in Texas. More are sought to make this truly an international park such as Glacier-Waterton in Montana - Canada. 
Hi dear friends, 
2006 Holistic Resource Managment of Texas, Inc.